the florida bar unlicensed practice of law fao #2017 … · 2018. 10. 18. · 3 . bar news, and in...

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THE FLORIDA BAR STANDING COMMITTEE ON THE UNLICENSED PRACTICE OF LAW

FAO #2017-1, SHORE V. WALL, ET. AL. __________________________________________________________________/

PROPOSED ADVISORY OPINION

This proposed advisory opinion is only an interpretation of the law and does not

constitute final court action.

August 15, 2017

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INTRODUCTION

This request for a formal advisory opinion is brought pursuant to Rule 10-

9.1 of the Rules Regulating The Florida Bar and Goldberg v. Merrill Lynch Credit

Corp., 35 So. 3d 905 (Fla. 2010); (TAB A). 1 The Petitioner, James Wall

(hereinafter, “Wall”), is a defendant in an interpleader action filed by the Clerk of

the Circuit Court of Manatee County (Case No. 2014 CA 3155). In Wall’s Answer

to Complaint For Interpleader and Objection and Defenses to Jupiter Asset

Recovery, LLC’s Claim to Surplus Funds, he asserted that Jupiter Asset Recovery,

LLC (hereinafter, “JAR”) engaged in the unlicensed practice of law. The Circuit

Court, citing Goldberg, found that it did not have jurisdiction over the unlicensed

practice of law claim and stayed the case pending a determination by the Supreme

Court of Florida whether JAR’s conduct constitutes the unlicensed practice of law

(TAB A, p. 23).

Pursuant to Rule 10-9.1(f) of the Rules Regulating The Florida Bar, public

notice of the hearing was provided on The Florida Bar’s website, in The Florida 1 Petitioner filed an unlicensed practice of law complaint/request for formal advisory opinion, which was originally investigated by the local circuit committee under Rules 10-5 and 10-6 of the R. Regulating Fla. Bar. Finding that respondent, Jeffrey Paine, and his company, Jupiter Asset Recovery, LLC, engaged in the unlicensed practice of law, the circuit committee offered respondent a cease and desist affidavit, which he refused to sign. Because there is no Florida case law on point, the local circuit committee closed its investigation and forwarded the request for formal advisory opinion to the Standing Committee on the Unlicensed Practice of Law (hereinafter, “Standing Committee”).

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Bar News, and in the Orlando Sentinel. The Standing Committee held a public

hearing on January 26, 2017. Testifying on behalf of the petitioner were attorneys

Ryan J. Hittel and Christopher M. Hittel. Testifying on behalf of JAR was attorney

Kevin Tynan and Jeffrey Paine (hereinafter, “Paine”). Also testifying were

attorneys Starlett Massey and Jonathan D. Kaplan (Tab B). In addition to the

testimony presented at the hearing, the Standing Committee received written

testimony from the Petitioners and JAR/Paine which has been filed with this Court

(Tab C).

The question presented for consideration by the Standing Committee is

whether a nonlawyer company is engaged in the unlicensed practice of law when it

holds itself out as having special knowledge on how to recover excess proceeds

from a tax deed sale held by the Clerk of Court under Chapter 197, Fla. Stat.;

identifies and contacts owners of excess tax deed sale proceeds for the purpose of

offering to recover the excess proceeds on their behalf from the Clerk of Court;

offers the owners of excess proceeds a contingency arrangement using a purported

assignment modified by an agreement to share the excess proceeds upon recovery,

with the owner retaining a 60% interest in the excess proceeds; requests from the

Clerk of Court the surplus funds based on the purported assignment; and files

pleadings in interpleader actions to recover the surplus funds.

GOLDBERG V. MERRILL LYNCH CREDIT CORP.

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In Goldberg, the petitioners filed class action lawsuits to recover document

preparation fees charged by respondent Merrill Lynch for services performed by its

clerical personnel in processing mortgage loans. Merrill Lynch moved to dismiss

the complaints, arguing, among other things, that the circuit court lacked

jurisdiction to hear any claims relating to the unlicensed practice of law. The

circuit court granted the motions and dismissed the cases. The Fourth District

Court of Appeal affirmed the dismissals because the respondents had not

previously been prosecuted for the unlicensed practice of law by The Florida Bar

or disciplined by this Court. This Court approved the Fourth District’s decision to

affirm the dismissals finding that:

To state a cause of action for damages under any legal theory that arises from the unauthorized practice of law, we hold that the pleading must state that this Court has ruled that the specified conduct at issue constitutes the unauthorized practice of law. (citation omitted) Stated another way, a claimant must allege as an essential element of any cause of action premised on the unlicensed practice of law that this Court has ruled the activities are the unauthorized practice of law. (citations omitted)

* * *

[A] plaintiff will not be able to state a cause of action premised on the unauthorized practice of law on a case of first impression (where this Court has not ruled on the actions at issue). In those cases, the pleading may be dismissed without prejudice or the action may be stayed

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until a determination from this Court pursuant to the advisory opinion procedures of rule 10-9.1 or the complaint and injunctive relief procedures of rules 10-5, 10-6, and 10-7 of the Rules Regulating The Florida Bar. (citations omitted)

Goldberg at 907-8.

In staying the Manatee County interpleader action at issue here, the circuit

court cited to Goldberg, and noted that the Supreme Court of Florida has exclusive

jurisdiction to determine the issue of unlicensed practice of law (TAB A, p. 23).

RULE 10-9.1 OF THE RULES REGULATING THE FLORIDA BAR

In Goldberg, this Court recognized that rule 10-9.1(c) of the Rules

Regulating The Florida Bar prevents a proposed formal advisory opinion from

being issued “with respect to any case or controversy pending in any court or

tribunal in this jurisdiction” thereby prohibiting the Standing Committee from

issuing a proposed formal advisory opinion while the underlying action is stayed or

dismissed without prejudice. The Court, therefore, suspended the rule in the

circumstances described in Goldberg and directed The Florida Bar to propose a

rule change according to the opinion. Subsequently, rule 10-9.1 was amended to

add language to provide that “the [Standing Committee] shall issue a formal

advisory opinion under circumstances described by the court in Harold Goldberg

v. Merrill Lynch Credit Corporation, 35 So. 3d 905 (Fla. 2010) when the petitioner

is a party to a lawsuit and that suit has been stayed or voluntarily dismissed without

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prejudice.” The Court, sua sponte, amended rule 10-9.1(c) in In re: Amendments

to Rule Regulating The Florida Bar 10-9.1, 176 So. 3d 1273 (Mem) (Fla. 2015).2

Consequently, if a proper Goldberg request is brought, a proposed advisory

opinion must be issued.3

Because this is a case of first impression, and the circuit court stayed the

action pending a determination from this Court, this was a proper Goldberg

request. A public hearing was held on January 26, 2017, after which the Standing

Committee voted to issue the proposed formal advisory opinion that follows.

FACTS

The factual allegations relating to Wall’s claim that JAR engaged in the

unlicensed practice of law are contained in paragraphs numbered 15 – 47 of

Defendant, James M. Wall’s Answer to Complaint for Interpleader and Objection

and Defenses to Jupiter Asset Recovery, LLC’s Claim to Surplus Funds (TAB A,

pp. 12 – 17), Mr. Wall’s April 15, 2015 statement accompanying his unlicensed

practice of law complaint (TAB A, pp. 3 – 4), and the January 13, 2017, Statement

of Petitioner, James M. Wall, For Hearing on Request for Goldberg Advisory

2 Consistent with Goldberg, the amendment deleted the requirement for a “voluntary” dismissal. 3 Footnote 3 of Goldberg provides “To be clear, the Florida Bar shall issue a formal advisory opinion upon request of a party in the circumstances described herein.” 35 So. 3d at 908.

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Opinion (TAB C, pp. 2 – 17). Wall alleged the following operative facts which are

summarized in relevant part as follows:

1. Paine/JAR contacted Wall regarding a tax deed surplus being held in the

court’s registry after a tax deed sale of Wall’s property. (TAB A, p. 3 and p. 12,

paragraph 15)

2. Paine convinced Wall to hire JAR/Paine to recover the surplus funds on

his behalf (TAB A, p. 12, paragraph 16). Wall assumed he was dealing with a

licensed attorney (TAB C, p. 3, paragraph 6).

3. Paine sent a notary to Wall’s business with two documents to sign, an

“Agreement” (TAB A, p. 5) and an “Absolute Assignment of Interest in Tax Deed

Surplus Proceeds” (TAB A, p. 6). Wall signed both documents. (TAB A, p. 13,

paragraphs 17 and 19)

4. Wall believed at the time he signed the Agreement and Absolute

Assignment that Paine was agreeing to represent him. (TAB A, p. 4)

5. The Agreement attempts to allow JAR to file documents to recover the tax

deed surplus on Wall’s behalf, with 60% of the proceeds going to Wall and the

remainder (minus any costs) going to JAR. (TAB A, p. 13, paragraph 18)

6. Under the Agreement, Wall purports to transfer his interest in the surplus

funds to JAR so that JAR can “file all necessary documents in order to recover any

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and all monies available as a result of the tax deed sale.” (TAB A, p. 15, paragraph

33)

7. The Agreement also states that JAR shall “make every effort to obtain any

available funds through the Clerk of Court.” (TAB A, p. 15, paragraph 34)

8. The essence of the Agreement is clear, JAR will file the necessary court

documents to obtain payment from the Clerk of Court on a contingency basis, for a

40% fee (which would amount to a fee near $94,000). (TAB A, p. 16, paragraph

35)

9. Because JAR is not a law firm, and Paine is not an attorney, the only way

JAR could file documents with the court on Wall’s behalf was to come before the

court as a straw-man assignee. (TAB A, p. 16, paragraph 36)

10. JAR did not disclose the Agreement when filing his proof of claim with

the Clerk of Court to recover the surplus tax deed funds nor did it disclose the

Agreement to the court in the interpleader action so that it would not be apparent

on the face of its claim that it was representing another party. (TAB A, p. 16,

paragraph 37, and TAB A, pp. 7 – 9)

11. Even though Wall signed the Absolute Assignment and Agreement he

understood that JAR/Paine would receive 40% of all funds recovered in return for

their work to recover the funds. (TAB A, p. 3)

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12. At the time Wall signed the Absolute Assignment and Agreement, liens

on the property held by the IRS and Manatee County Code Enforcement exceeded

the amount of the surplus. (TAB A, p. 13, paragraph 20)

13. After the tax deed sale, the IRS lien was paid in full at the closing of the

sale of another property Wall owned, and the Manatee County Code Enforcement

lien was substantially reduced. The payment of the IRS lien and the reduction in

the code enforcement fine resulted in the surplus funds available to the owner

increasing from $0 to approximately $235,000. (TAB A, p. 13, paragraphs 21 –

23)

14. JAR seeks to recover 40% of this $235,000. (TAB A, p. 13, paragraph

24)

15. Paine drafted a letter for Wall’s signature to the attorney for the Clerk of

Court in the interpleader action (TAB A, p. 10). The letter, which Wall did not

sign, includes the following language: “I understand that Jupiter has filed an

Answer and Cross Claim in this matter which protects my interest in these funds[]”

and “Please consider this letter as notice that I shall not file a responsive pleading

in this case and I consent to a default against me in this case.” (TAB A, p.10 and p.

16, paragraphs 38 – 40)

DISCUSSION

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As this Court noted in The Florida Bar re: Advisory Opinion – Scharrer v.

Fundamental Administrative Services, 176 So. 3d 1273, 1278 (Fla. 2015), it is not

the Standing Committee’s role to sit as the trier of facts or to decide disputed facts:

Although we recognize that the Standing Committee does not sit as a trier of fact, and it is not the Committee’s role to decide disputed issues of fact, our decision in Goldberg does authorize the Standing Committee to determine whether the specific facts as alleged in a petition for an advisory opinion, if those facts are taken as true, would constitute the unlicensed or unauthorized practice of law.

Thus, in reviewing the alleged facts the Standing Committee takes as true

those facts, and applies existing case law to the facts to determine whether the

activity in question constitutes the unlicensed practice of law.

Essentially, Wall alleged that JAR/Paine: (1) held himself out as an attorney

and as having special knowledge on how to recover excess proceeds from a tax

deed sale, (2) represented him in the interpleader action, and (3) prepared legal

documents for him which affected his important legal rights.

Holding Out

Allegations regarding Paine holding himself out as an attorney are contained

within paragraphs 2 and 4 above, and paragraph 43 of Wall’s Interpleader Answer

(TAB A, p. 17), which states that:

Mr. Paine also holds himself out to be an attorney on his website, despite not being licensed to practice law in

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Florida. See Composite Exhibit ‘E’, attached (Google search showing title of jupiterassetrecovery.com to be “Jupiter Asset Recovery | Jeffrey Paine Attorney”; Source code of jupiterassetrecovery.com containing the page title “Jupiter Asset Recovery | Jeffrey Paine Attorney”.)

Taken as true, these allegations raise unlicensed practice of law concerns

because it constitutes the unlicensed practice of law for nonlawyers to hold

themselves out as lawyers. The Florida Bar v. Warren, 655 So. 2d 1131 (Fla.

1995). As this Court found in The Florida Bar v. Gordon, 661 So. 2d 295 (Fla.

1995), it constitutes the unlicensed practice of law for nonlawyers to “impliedly or

expressly, personally or by use of advertisement, hold[] themselves out as lawyers

and authorized to practice law in Florida and describing themselves as lawyers,

attorneys, attorneys at law, esquire, counselor, counsel, or any other title that is

designed to lead a member of the public into believing that respondents are

licensed to practice law in Florida and able to render assistance with legal matters.”

By contacting owners of excess tax deed sale proceeds for the purpose of

offering to recover the excess proceeds on their behalf from the Clerk of Court,

JAR/Paine is implicitly holding out as having special knowledge on how to recover

the excess proceeds. This raises unlicensed practice of law concerns because it

constitutes the unlicensed practice of law for a nonlawyer to hold himself out as

having special knowledge or expertise in legal areas. The Florida Bar v. Davide,

702 So. 2d 184 (Fla. 1997) (nonlawyer engaged in unlicensed practice of law and

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enjoined from advertising that his or her company specializes in legal areas or that

gives the public the expectation that the company has expertise in the field of law,

and that describes legal procedures).

Representation in Interpleader Action

The gravamen of the allegations in paragraphs 3 – 15 above are that

JAR/Paine had Wall execute both an Absolute Assignment and an Agreement to

assist Wall in obtaining the tax deed surplus from the Clerk and the court.

However, JAR/Paine only filed the Absolute Assignment with the Clerk and the

court in the interpleader action, so that it would appear to the Clerk and court that

Wall assigned his interest in the tax deed surplus to JAR/Paine. The Absolute

Assignment provides “This Agreement is complete, in and of itself, representing

the entire agreement between all Parties hereto[.]” However, the Agreement,

executed contemporaneously with the Absolute Assignment, indicates that there

was not an absolute or complete assignment. The Agreement, which mandates that

JAR make every effort to obtain the surplus funds, provides that Wall will receive

60% of the surplus funds recovered by JAR. The remaining 40% would go to

JAR. The effect of this Agreement, which was not disclosed to the Clerk or the

court, is that any action that JAR took with the Clerk or the court in the

interpleader action to obtain the tax deed surplus it took not only on its own behalf,

but on behalf of Wall as well. Before Wall filed his Answer in the interpleader

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action, JAR/Paine prepared and sent him a letter to sign and send to the Clerk’s

attorney, wherein Wall asserts his understanding that JAR filed an Answer and

Cross Claim which protects his interest in the surplus funds and that he would not

be filing a responsive pleading in the interpleader case and that he consents to a

default judgment against him. Wall did not sign this letter.

Taken as true, the allegations in paragraphs 3 – 15 above raise unlicensed

practice of law concerns because it constitutes the unlicensed practice of law for a

nonlawyer to represent another in court. As this Court stated, axiomatically, “It is

generally understood that the performance of services in representing another

before the courts is the practice of law.”4 See The Florida Bar v. Smania, 701 So.

2d 835 (Fla. 1997) (nonlawyer enjoined from appearing in court on behalf of

others other than as a witness); The Florida Bar v. Eubanks, 752 So. 2d 540 (Fla.

1999) (nonlawyer engaged in unlicensed practice of law and enjoined from

appearing in any Florida court, directly or indirectly, as a spokesperson or

representative for litigants in any court proceeding); The Florida Bar v. Snapp, 472

So. 2d 459 (Fla. 1985) (nonlawyer engaged in unlicensed practice of law and

enjoined from representing an individual other than himself in court proceedings);

The Florida Bar v. Strickland, 468 So. 2d 983 (Fla. 1985) (nonlawyer engaged in

4 The Florida Bar v. Sperry, 140 So. 2d 587, 591 (Fla. 1962), judg. vacated on other grounds, 373 U.S. 379 (1963).

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the unlicensed practice of law and enjoined from appearing in Florida courts on

behalf of a party in family law matters); The Florida Bar v. Rich, 481 So. 2d 1221

(Fla. 1986) (nonlawyer engaged in unlicensed practice of law and enjoined from

representing others in court in eviction and criminal matters).

Here, JAR/Paine was representing Wall because Wall still had an interest in

the litigation. This was not a situation where Wall signed over all of his interests

in the proceeds of the sale to JAR/Paine so that JAR/Paine became the party to the

action. Instead, JAR/Paine offered Wall a contingency fee agreement where Wall

retained an interest in the proceeds of the sale as he stood to gain 60% from any

recovery. Wall was, therefore, a party to the action and was being represented by

JAR. By so representing Wall, JAR/Paine engaged in the unlicensed practice of

law.

Preparation of Documents Affecting Legal Rights

Taken as true, the allegations in paragraphs 9 and 15 above raise unlicensed

practice of law concerns because it constitutes the unlicensed practice of law for a

nonlawyer to prepare a document for another which affects their important legal

rights. The Florida Bar v. Sperry, 140 So. 2d 587, 591 (Fla. 1962), judg. vacated

on other grounds, 373 U.S. 379 (1963); The Florida Bar v. Gordon, 661 So. 2d

295 (Fla. 1995) (nonlawyer engaged in unlicensed practice of law and enjoined

from allowing members of the public to rely on respondents to properly prepare

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legal forms or legal documents affecting an individual’s legal rights); The Florida

Bar v. Eidson, 703 So. 2d 442 (Fla. 1997) (nonlawyer enjoined from preparing and

filing legal documents on behalf of another); The Florida Bar v. Williams, 388 So.

2d 564 (Fla. 1980) (nonlawyer enjoined from assisting customers in preparing

documents or forms necessary for submission to any court or governmental

agency); The Florida Bar v. Miravalle, 761 So. 2d 1049, 1051 (Fla. 2000) (“This

Court has repeatedly held that the preparation of legal documents by a nonlawyer

for another person to a greater extent than typing or writing information provided

by the customer on a form constitutes the unlicensed practice of law.” (citations

omitted)). Both the letter to the Clerk’s attorney consenting to a default judgment

and the answer filed by JAR/Paine in the interpleader action would certainly affect

Mr. Wall’s important legal rights by requesting from the Clerk of Court surplus

funds.

Further, taken as true, the above allegations raise unlicensed practice of law

concerns to the extent Wall relied on JAR/Paine to file with the Clerk and court the

necessary documents to obtain the surplus tax deed funds. As this Court noted in

The Florida Bar v. Brumbaugh, 355 So. 2d 1186, 1193-4 (Fla. 1978), “it is clear

that her clients placed some reliance upon her to properly prepare the necessary

legal forms for their dissolution proceedings. To this extent we believe that Ms.

Brumbaugh overstepped proper bounds and engaged in the unauthorized practice

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of law.” See also The Florida Bar v. Williams, 388 So. 2d 564 (Fla. 1980)

(nonlawyer enjoined from allowing members of the public to rely on her to

properly prepare legal forms or legal documents affecting a customer’s legal

rights).

PUBLIC HARM

Separate from the unlicensed practice of law issue, the Standing Committee

was also concerned that JAR/Paine’s business model of only filing the Absolute

Assignment with the Clerk and court, and not also disclosing the

contemporaneously executed Agreement, when attempting to recover the tax deed

surplus was, at a minimum, misleading, and perhaps, a fraud on the court, because

the true relationship between JAR/Paine and its customers is not disclosed to the

Clerk and court. Without knowledge of the Agreement, the court would have no

way of knowing about the unlicensed practice of law occurring before it. If an

attorney filed misleading documents with a court that hid his or her true

relationship with the client, the attorney would be subject to discipline for lack of

candor toward the tribunal. Just as lawyers must avoid conduct that undermines

the integrity of the adjudicative process, this Court must ensure that nonlawyers do

not undermine the integrity of the adjudicative process. As this Court noted in The

Florida Bar v. Moses, 380 So. 2d 412, 417 (Fla. 1980), “the single most important

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concern in the Court’s defining and regulating the practice of law is the protection

of the public from incompetent, unethical, or irresponsible representation.”

The Standing Committee had similar concerns about the language in the

Absolute Assignment, which provides that “This Agreement is complete, in and of

itself, representing the entire agreement between all Parties hereto.” The statement

was patently false. The Absolute Assignment did not represent the entire

agreement between JAR/Paine and Wall; there was also the contemporaneously

executed Agreement between the parties. It was this Agreement which resulted in

JAR/Paine’s improper representation of Wall before the Clerk and the court in the

interpleader action. The Standing Committee felt that this patently false language

in the Absolute Assignment was, at a minimum, misleading, and perhaps a fraud

on the court, and warrants the public’s protection by this Court.

CONCLUSION

It is the opinion of the Standing Committee on the Unlicensed Practice of

Law that a nonlawyer company is engaged in the unlicensed practice of law when

it holds itself out as having special knowledge on how to recover excess proceeds

from a tax deed sale held by the Clerk of Court under Chapter 197, Fla. Stat.;

identifies and contacts owners of excess tax deed sale proceeds for the purpose of

offering to recover the excess proceeds on their behalf from the Clerk of Court;

offers the owners of excess proceeds a contingency arrangement using a purported

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assignment modified by an agreement to share the excess proceeds upon recovery,

with the owner retaining a 60% interest in the excess proceeds; requests from the

Clerk of Court the surplus funds based on the purported assignment; and files

pleadings in interpleader actions to recover the surplus funds.

The Standing Committee is not sitting as the trier of fact in this matter.

Should this Court adopt the Standing Committee’s proposed formal advisory

opinion, it would establish the precedent required by Goldberg and be the standard

to be applied by the trier of fact in ultimately deciding whether the defendants

engaged in the unlicensed practice of law.

Respectfully Submitted,

/s/ Kellie D. Scott by Jeffrey T. Picker Kellie D. Scott, Chair Standing Committee on Unlicensed Practice of Law The Florida Bar 651 E. Jefferson Street Tallahassee, Florida 32399-2300 (850) 561-5840 Fla. Bar No. 432600 Primary Email: [email protected]

/s/ Jeffrey T. Picker Jeffrey T. Picker Fla. Bar No. 12793

/s/ William A. Spillias William A. Spillias Fla. Bar No. 909769 The Florida Bar 651 East Jefferson Street

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Tallahassee, Florida 32399-2300 (850) 561-5840 Primary Email: [email protected] Secondary Email: [email protected]

....., THE FLORIDA BAR

Unlicensed Practice of Law Complaint Form

There is a requirement for you to execute the oath at the end ofthis form. False statements made in bad faith or with malice may subject you to civil or criminal liability. A copy of your complaint may be sent to the nonlawyer during the course of the investigation. Additionally, if the nonlawyer asks who complained, your name will be provided. Further information may be found in the pamphlet "Filing an Unlicensed Practice of Law Complaint."

Your Name: James Wall c/o Chris Hittel

Address: 333 Sixth Ave., W.

City: Bradenton

State & Zip: FL 34205

Telephone: 941-746-7777

Nonlawyer'sJeffrey Paine/ Jupiter Asset RecoveryName:

c/0 Dennis Bayer, Esq., 109 S. 6th St.Address:

Flagler Beach City:

FL 32136State & Zip:

386-439-2332Telephone:

Describe your complaint and attach a copy of relevant documents. Please limit complaint and attachments to 25 pages.

Please see 2 page letter by James Wall, Letter from attorney Christopher M. Hittel and attachments from Manatee County Circuit case No.: 2014 CA 3155.

RETURN TO THE FLORIDA BAR

UPL Department The Florida Bar Suite 2580 4200 George J. Bean Pkwy. Tam a, FL 33607

UPL Department The Florida Bar The Gateway Center Suite 1625 1000 Legion Place Orlando, FL 32801

UPL Department The Florida Bar Lake Shore Plaza II Suite 130 1300 Concord Ter. Sunrise, FL 33323

UPL Department The Florida Bar Rivergate Plaza Suite M-100 444 Brickell Ave. Miami, FL 33131

UPL Department The Florida Bar 651 E. Jefferson St. Tallahassee, FL 32399-2300

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HITTEL LAW P.A. Christopher Mat Hittel

Attorney at Law Certified Circuit Civil Mediator

333 Sixth Avenue West Bradenton, Florida 34205 www.HITTELLAw.com

941- 746-7777 941- 746-1133 FAX cmh@ HITTELLA w.com

April 17, 2015

E-mail [email protected] and U.S. MAIL

The Florida Bar UPL Department 4200 George J. Bean Pkwy., Ste. 2580 Tampa, FL 33607-1496

RE: James Wall's Complaint against Jeffrey Paine and Jupiter Asset Revovery, LLC; Request for Goldberg Advisory Opinion

Dear UPL Department:

Enclosed is a copy of Mr. Wall's complaint and supporting documents. I have represented Mr. Wall since July 29, 2014 in case No.: 2014 CA 3155 in the interpleader action brought by the Clerk of the Court in Circuit Court of Manatee County and continue my representation as he files this complaint for the unlicensed practice of law against Jeffrey Paine and Jupiter Asset Revovery, LLC.

I do believe that this is an issue that deserves review. Please review Mr. Wall's answer and objection to Jupiter/Paine's claim for surplus funds. Attached is Exhibit "E."

In addition their attempt to unfairly take advantage of Mr. Wall, Jupiter/Paine made their claim based on the "Absolute Assignment" and did not file the "Agreement" which indicates that the assignment is not absolute and that Jupiter/Paine made themselves straw purchasers of Mr. Wall's interest in the surplus funds in order to conceal their representation of Mr. Wall.

Please let this Complaint serve as a reqeust for a Formal Advisory Opinion from The Florida Bar as to the allegations of unlicensed practice of law raised in Case No.: 2014 CA 3155 in Manatee County. On March 20, 2015, the Circuit Court found it lacked jurisditicon to determine whether the allegations constitute the unlicensed practice of law and stayed the case "pending determination from the Supreme Court." See Goldberg. V Merrill Lynch Crecit Corp. 35 So.3d 905 (Fla. 2010). See Exhibit "F."

Please call with any questions you may have.

Sincerely yours,

8"~Christoph~r bin;~tel, Esq.

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mailto:[email protected]

James M. Wall 501 General Harris Street

Longboat Key Florida 34228

I, James Wall submit this Unlicensed Practice of Law Complaint against Jeffery Paine and Jupiter Asset Recovery and state as follows:

I was contacted by Jeffrey Paine on the telephone concerning money that remained in the Court's Registry after a County tax deed sale of my property. He said that he could help me recover some of that money. Another person came to my property with two documents to sign. I signed them both, my wife witnessed them and I believe it was the man who came that notarized them. They are attached Exhibits "A" and "B". On January 16, 2014 Jeffrey Paine filed a request for the surplus funds in the Court's Registry. See Exhibit "C." Please note that even though I signed an "Absolute Assignment" and an "Agreement" I understood that Jupiter/Paine would receive 40% of all funds recovered in return for their work to recover the funds. At the time I signed those agreements there was a $238,500 code enforcement lien, and a Federal Tax lien in approximately $235,000 and a claim by the purchaser in the amount of $6,838.70. Those claims consumed the total amount in the Registry, leaving me nothing. After signing the two agreements with Jupiter/Paine, I sold a different property which from the proceeds of that sale were taken at closing to pay the Federal Tax Lien (which had a claim against the funds in the Court's Registry). In addition, the purchaser of this County tax lien property, with my help, negotiated a reduction of the code enforcement lien down to $10,200. On or about July 23, 2014, I received a letter from Jupiter/Paine, see Exhibit "D", in which Mr. Paine requested that I sign and deliver to attorney Edwin Mulock. It stated that I did not have a claim for any money in the Registry. I did not sign that letter.

That on 6/26/2014 I received a summons for an interpleader in Case No.: 2014 CA 3155 which at that time soon after I sought legal advice and hired attorney Christopher Mat Hittel with Hittel Law, P.A. who I hired and continues to represent me in this matter and who has assisted me in preparing this complaint.

I answered the interpleader and included in my claim for the remaining balance and defenses against Jupiter/Paine which included the defense of Unlicensed Practice of Law. Mr. Hittel advised me that he believes besides being wrongfully taken advantage of, that Mr. Paine has engaged in the Unlicensed Practice of Law when he offered to take care of everything to resolve the claims which were superior to my claim as the owner at the time of the tax deed sale. I do not agree that Jupiter/Paine earned any amount near the $94,000 they are claiming, if anything at all.

At some point the amount available to me in the Court Registry went from $0 to approximately $209,000. I requested that the Court distribute the undisputed funds which the Court agreed which afterward I did receive $115, 115.04 directly from the Court. The amount which remains is the $94,000 Jupiter/Paine are claiming as owners of the absolute assignment that I did sign and an amount set aside to pay attorney Mulock who represents the Clerk of the Court. See case No.: 2013 TD 313.

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http:6,838.70

That I believed that at the time of signing the assignment and agreement that Mr. Paine was agreeing to represent me. I do not believe that he did anything except file his request for the surplus funds, until I objected to his right to receive them or the compensation he is requesting.

I am filing this request for review because the Court in the interpleader action Case: 2014 CA 3155 has requested that I either request a review from the Florida Bar or withdraw my unlicensed practice of law affirmative defense. I have chosen to request a review from The Florida Bar because even though I did sign the documents with Jupiter/Pain, I did feel as if he had agreed that he would represent me and do not feel that he did and have been advised that the services which Jupiter/Paine offered (and did not provide) should be regulated by the Bar in order to protect people from being taken advantage of in situations similar to mine.

Under penalty of perjury, I declare that I have read the foregoing document and that to the best of my knowledge and belief the facts stated in it are true.

Dated this 151h of April, 2015

2

4

EXHIBIT A - AGREEMENT

TBISAGRD:MENT • ....oeci•1111 /~4-ofJamJ.q,. 2014.~Jupl•Allet.._~ u.c of5642Calpanm W.y, W•Palm Beecb. FL 334070 (JUPf[BR).anll.Juua M:. W•B (SSl;LER), nmuddrc111 11501 aa..J Hanis Slreet, .l..on&boalXl!r. PL .3422.I '.

I

TAX DEED#: 20J.S.GOUOl'D

PROPER1Y DBSC&JPTION:ll07W.co .........Bn.......... 34210

'Both,................

Selhr i.9by ..... to .0.11'-'irel CCllM)' 10 Jupiflir A.t~.U.C al'rit)il. tid8 ad inferelt in mad 1ott.mrpu monlesbeiqhlldbJ t'lleo.tr fbr1'te~... --,.... pmdia tbrtber ..- dmt lupiDer Miit ~. UC lnlends 11> fBe d ~-ry~ ia mdll' ID ~my lad an moniea IMllllMt•a NIDli are.• 4elDd .a. otdle ...a Jup111r AIRt ~. l.LC Is awue llait dllle 18110 .--edlll-ilaetftllll llllafl.be llVCClllll'ld. '° • la die ..-1Jmtis... IO NCOVS tome.,. .. of.W lbddl.i it....pay. ponlan Selhr. 8.tcl mu--- to**'1bO CIJlllPmlJ ofall faada~

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JUPn'BR. apes 111> lllDI- \Villl "11 dit11unmem, a copy ofdlo oUck haIbo I ate ofCoat.

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~--PiikT NAME =tr\·'1.,~~; "V'\ . I

STATE OP FLORIDA COUNTY OF MANATEE

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EXHIBITS

I ABSQLtJD ASSIGNMBNJ OP INIBllESI IN TAX I

DEED SYRPLUS PROcgDS

County: Manatee Tax.Deed No: 2013-000313TD Sale Date: V612014 SUrplas: 1239,580.26 I

THIS AGREEMENT, made and enb'cd into Chis ..lie. day ofJanwuy, 2014, bctwecD James M. Wall. Owner

hr(" gnor"). whose address is SOI General Harris Street. Longboat Key, PL 34228. and .Jupiter Asset Recovery, LLC, or gns ("Assignee"). whOIO address is 5642 Corporate Way, West Palm Beach. PL 33407, for and in consideration of the ofSlO and other good and valuable consideration, the receipt and sufficiency ofwhich is hereby acknowledged,

1agree as follows: .

,

~,b,f ~' ...

· 1. Assignor aGknowledges that ho is the foanet owner named in the above-styled tax deed case, and he has not assigned or otherwise relillqujshed any remainder interest iJl or to the proceeds of said sale. Assignor has been informed by Auignee that Surplus Punda in the approxhnat• amount of 123',581.26 may be due and owing to Ass , and may be available for disbursement from tho Qerk ofCourt in Manateo County, Florida. as the result of11ae capti!.med Tax Deed Salo.

2. Assignor hereby srants. bargains. sells and assips. iUIJy and irrevocably, to Assignee, Jupiter Asset very, u.c. or assigns, any and an rigbt, titlo and interest m and to aD such surplus funds cmreat1y held by the

Reirilld:rv oftho Court, as may be due fi'om the above-refenmced case.

3. Both Parties enter into this Aateement intencting to be legally bound thereby. This AgreemeJlt is lete, mand af llselt representing the cotinl agreement between all Paities heteto. and my not be alteicd or amended

in writing.

CiNOR ACKNOWLEDGES RECEIPT OF A COPY OF nus AGRBEMENT, AND AGREES TO PROMPTLY PERATE WITH ASSIGNEE BY PROVIDING ANY ADDmONAL DOCUMENTATION OR INFORMATION

UESTED, OR BY EXECUTING ANY AND ALL ADDmONAL PAPBR.WORK ASSIGNEE DEEMS NE ARY IN CONJUNCilONWITH 1BIS AOREEMBNT.

IN WITNBSS WHBREOP, I have hereunto set my band 1his day and dab:.

scaled and delivered in our prcscnc:e:

·. ~ame

~~ATECOUNTY

OF FLORIDAOF MANATEB

11iB FOREGOING 1....-Lacknowledged before me this .J.QJb.. day ofJuwary, 2014, by lames M. WaD. who [ ] la ~known lo-;;~.;;i;·hu produced p 1' D' r''n~ : identific:atioo..

: -- ~ ·NOT :::.:: i . · ., Y~ . .. 1

'. :. ..... .. i• ···PRINT NAMB •. " _,./ -~

......·••. ~81~

(~GR.LIS .\ ffolalJ Publlc • Sllte or Flolfda 1My Comm. Eirplm New 12, 2014

CallllllisSIOlt II Ee 39434

6

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E.~U•B 1T iiC.O~t-·· • '. c... ·-1F'J.lQ·,fOR RECORD

R. B..SHORE

2014 JAN 2Z AH 8: OO

Cl.ERK OF ItE ClnRT ~ M.W.JEE co. FlaiQ( .

January 16, 2014

• Manatee County Clerk of Courts 1115 Manatee Avenue West PO Box 25400 Bradenton, FL 34206 ATIN: TAX DEED DEPT.

RE: Tax Deed# 2013-000313TD

Dear Tax Deed Dept:

Please find enclosed the following for the above-mentioned for Tax Deed surplus funds after sale, which took place on January 6, 2014:

• Assignment signed by James Wall, the fonner owner ofrecord. • Photo identification ofJames Wall. • Proof ofClaim Fonn • Photo identification of Jeffrey Paine, Managing Manager of Jupiter Asset

Recovery. • W9fonn

Thank you for your kind consideration in this matter.

Very

5642 Corporate Way, West Palm Beach, FL, 33407 Phone: 866-776-2859 Fax No. 561-223-2069 www.jupiterassetrecovery.com

7

http:www.jupiterassetrecovery.com

PROOFOFCLAIMFORPAYMENT

County: Manatee Tax Deed No: 2013-000313TD Sale Date: 1/612014 Surplus: $239,580.26

Ou this L day of January, 2014 before me, Diane Smith (notary) Personally appeared Jeffrey Paine, Managing Member of Jupiter Asset Recovery, LLC.

Property owner f Claimant

I. He is the: Fonner owner _____________ Mortgage Holder _____________ SurvivmgSpousc ____________ Heir ________________

Court AppomtedAdministrator _____________

Attomeyfor

Estaw---------------~Lien Holder _______________ OtherParty_s_Assignee for the Beneficiary (or Owner)

Legal Description ofProperty THAT PART OF THE N112 OF BLK 73, SPENCER AMENDED PLAT OF CORTEZ ADD DESC AS FOUOWS: BEG AT A PT FOUND BY MEASURING N LN OF SD SEC 12, A DIST OF 215 FT, TH S A DIST OF 50 FT TO THE S R/W ON OF SR 684 TO THE ABOVE MENTIONED POB, TH CONT S & PARALLEL TO THE E LN OF SD SEC 12, A DIST OF 227 FT, TH S 89 DEG 52 MIN E & PARALLEL TO THEN LN OF SD SEC 12, A DIST OF 200 FT, TH N & PARALLEL TO THE E LN OF SD SEC 12, A DIST OF 231.56 FT TO THE ABOVE MENTIONED SLY R/W LN OF SR 684, TH WLY ALG S R/W LN A DIST OF 200 FT, MIL TO THE AFORESAID POB, (OR 269 P 145), SUBJ TO EASMT IN OR 765 P 616, LESS: RD R/W IN OR 1362 P 3315 DESC AS FOLLOWS: BEG AT THE INTERSECTION OF THE SLY EXISTING R/W LN OF STATE RD 684 (PER SECTION 1304-201) & THE Wl.Y EXISTING R/W LN OF 88TH ST W ALSO BEING THE E LN OF SD LOT 73; TH S 00 DEG 24 MIN 30 SEC W, ALG SO EXISTING R/W LN 60 FT; TH DEPARTING SD EXISTING WI.Y R/W LN N 89 DEG 35 MIN 30 SEC W, 13 FT; TH N 00 DEG 24 MIN 30 SEC E, 38 FT; TH N 29 DEG 05 MIN 21 SEC W, 24.34 FT TO SD SLY EXISTING R/W LN OF SR 684 AND THE BEG OF A CURVE CONCAVED NLY; TH ALG THE ARC OF SD CURVE HAVING A RADIUS OF 7689.44 FT, A CIA OF 00 DEG 11 MIN 11 SEC THE CHORD FOR WHICH BEARS N 88 DEG 32 MIN 56 SEC EA DIST OF 25 FT TO THE END OF SO CURVE AND THE POB LESS MINERAL RIGHTS PER OR 1571/4145 Pi.78645.000011

We acknowledge that we Ol'e making the above representation under oath in order to receive payment of such surplus finds, and understand that, if it is later discovered or determined that payment ofsuch surplus funds to us was in error, we are personally liable/or the repayment ofsuch surplus funds to the Clerk and/or Manatee County

Claimant: J

STATE OF FLORIDA COUNTY OF PALM BEACH

The foregoing instrument was acknowledged before me this \ ~ day of Janaury, 2014, by Jeffrey Paine. is oersona]ly wu me or has produ (Type of identification).

DIANE SMITH NOTARY PUBLIC STATE OF FLORIDA comm# EE159949

(SEAL) • ;icp1r.. 41212016

8

http:239,580.26

·PRINT NAME ', \ ;:

~·

ABSOLUTE ASSIGNMENT OF INTEREST INTAX DEED SURPLUS PROCEEDS

County: Manatee Tax Deed No: 2013-000313TD Sale Date: 1/6/2014 Surplus: $239,580.26

THIS AGREEMENT, made and entered into this ..lie. day of January, 2014, between James M. Wall, Owner ("Assignor"), whose address is 501 General Harris Street, Longboat Key, FL 34228, and Jupiter Asset Recovery, LLC, or assigns ("Assignee"), whose address is 5642 Corporate Way, West Palm Beach, FL 33407, for and in consideration of the sum of $10 and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, hereby agree as follows:

1. Assignor acknowledges that he is the former owner named in the above-styled tax deed case, and he has not transferred, assigned or otherwise relinquished any remainder interest in or to the proceeds of said sale. Assignor has been infonned by Assignee that Surplus Funds in the approximate amount of $239,580.26 may be due and owing to Assignor; and may be available for disbursement from the Clerk of Court in Manatee County, Florida, as the result of the captioned Tax Deed Sale.

2. Assignor hereby grants, bargains, sells and assigns, fully and irrevocably, to Assignee, Jupiter Asset Recovery, LLC. or assigns, any and all right, title and interest in and to all such surplus funds currently held by the Registry of the Court, as may be due from the above-referenced case.

3. Both Parties enter into this Agreement intending to be legally bound thereby. This Agreement is complete, in and of itself, representing the entire agreement between all Parties hereto, and my not be altered or amended except in writing.

ASSIGNOR ACKNOWLEDGES RECEIPT OF A COPY OF THIS AGREEMENT, AND AGREES TO PROMPTLY CO-OPERATE WITH ASSIGNEE BY PROVIDING ANY ADDITIONAL DOCUMENTATION OR INFORMATION REQUESTED, OR BY EXECUTING ANY AND ALL ADDITTONAL PAPERWORK ASSIGNEE DEEMS NECESSARY IN CONJUNCTION WITH THIS AGREEMENT.

IN WITNESS WHEREOF, I have hereunto set my hand this day and date.

Signed, sealed and delivered in our presence:

Print~ame

STATE OF FLORIDA COUNTY OF MANATEE

THE FOREGOfNG instrument~acknowledged before me this 1fillL day of January, 2014, by James M. Wall, who [ ] is personally known to me or VJ~~ has produced •dda I»••,le·~ identification . =:

.;· --~ ·- .. NOT Y P'f\Wij

EXHIBIT¥ ~ t::> ~

JAMES M.. WALL 501 GENERAL HARRIS ST., LONGBOA KEY, FL 34228

July 23 2014

Mr. Edward T. Mulock Esq. 233 lSlh St. West Bradenton, FL 34205

Dear Mr. Mulock:

The purpose ofthis letter is t.o acknowledge that I have signed my interest in the funds involved in this matter to Jupiter Asset Rec :very LLC.

I understand that Jupiter has filed an Answer and Cross laim in this matter which protects my interest in these fimds.

Please consider this letter as notice that I shall not file responsive pleading in this case and I consent t.o a default against me in this e.

Very Truly Yours,.

James M. Wall

•

10

e . Filing# 17359241 Electronically Filed 08/21/201412:45:16 PM

IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR MANATEE COUNTY FLORIDA

R.B. "CHIPS" SHORE CLERK OF COURT OF MANATEE COUNTY,

Plalntlff, v.

JAMES M. WALL; MANATEE COUNTY; FLORIDA DEPARTMENT OF REVENUE; JUPITER ASSET RECOVERY; PALLARDY, LLC; ET AL.

Defendants.

Case No.: 2014 CA 3155

DEFENDANT, JAMES M. WALL'S, ANSWER TO COMPLAINT FOR INTERPLEADER AND OBJECTION AND

DEFENSES TO JUPITER ASSET RECOVERY. LLC'S CLAIM TO SURPLUS FUNDS

Defendant, James M. Wall, by and through the undersigned attorney, hereby

gives his Answer to the Complaint for lnterpleader and states as follows:

1. Admit.

2. Admit.

3. Admit.

4. Admit.

5. Admit.

6. Admit.

7. Admit that Jupiter Asset Recovery, LLC ("Jupiter") filed a statement of claim.

However, the validity of the claim is denied. The below Objection and Defenses to

Jupiter Asset Recovery, LLC's Claim is incorporated herein by reference in its entirety.

8. Admit.

9. Admit.

10.Admit.

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11

11.Without knowledge, therefore denied.


13. Without knowledge, therefore denied.


STATEMENT OF CLAIM TO SURPLUS FUNDS

Pursuant to Fla. Stat. §197.502(4), James Wall, as the owner of record at the

time of the tax deed sale, is entitled to the full proceeds after the payment of those

lienholders deemed to hold an interest superior to that of Mr. Wall.

Although James Wall signed a document purporting to assign his interest in the

Tax Deed Surplus to Jupiter Asset Recovery, LLC, that assignment is invalid due to the

illegal and wrongful acts of the assignee (Jupiter Asset Recovery, LLC) as more

particularly described below.

OBJECTION ANO DEFENSES TO JUPITER ASSET RECOVERY. LLC'S CLAIM

Defendant, James M. Wall, Objects to the Claim for Surplus Funds made by

Jupiter Asset Recovery, LLC and asserts the following defenses thereto:

General Allegations

15.At some time prior to January 10, 2014, Jeffrey Paine, owner and manager of

Jupiter Asset Recovery, LLC (hereafter "Jupiter"} contacted James M. Wall

regarding the tax deed surplus being held in the Court Registry in Case No. 2013

TD 313.

16. Mr. Wall was apparently convinced by Mr. Paine to hire Jupiter and Mr. Paine to

"recover" those surplus funds on his behalf.

Page 2of12

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17.0n January 10th, 2014, Mr. Paine sent a notary to meet Mr. Wall at his business

to sign an "Agreemenr (attached hereto as Exhibit 'A' and hereafter "The

Agreement") and an "Absolute Assignment of Interest in Tax Deed Surplus

Proceeds" (attached hereto as Exhibit 'B' and hereafter "The Assignment").

18. The "Agreement" attempts to allow Jupiter to file documents to recover the

$239,580.26 tax deed surplus on Mr. Wall's behalf, with 60% of the proceeds

going to Mr. Wall, and the remainder (minus any costs) going to Jupiter.

19.The "Agreement" and the Assignment were signed contemporaneously.

20.At the time the Assignment and "Agreement" were signed, liens on the property

held by the IRS and Manatee County Code Enforcement exceeded the amount

of the surplus.

21. However, subsequent to the Tax Deed Sale, the IRS lien was paid in full at the

closing of the sale of another property owned by Mr. Wall.

22.Also subsequent to the Tax Deed Sale, Manatee County Code Enforcement

reduced its fine to only $10,020 from the original amount of $238,500 at the

request of Ryan Snyder, Esq., counsel for Pallardy, LLC (the purchaser at the

Tax Deed Sale.)

23. The payment of the IRS lien and the reduction in the Code Enforcement fine has

resulted in the amount of surplus funds available to the owner increasing from $0

to approximately $235,000.

24. Jupiter now seeks to recover the $235,000 and take its 40% commission on that

amount.

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13

http:239,580.26

Unlicensed Practice of Law

25. Paragraphs 15 through 24 are realleged and incorporated by reference as if fully

set forth herein.

26. Jeffrey Paine and Jupiter engaged in the unlicensed practice of law when they

located the existence of surplus funds belonging to Mr. Wall, and then contacted

Mr. Wall to make sign the Assignment and "Agreement" in an attempt to share

the proceeds of the recovery.

27. Such conduct has been specifically held by the Supreme Court of Florida to be

the unlicensed practice of law in The Florida Bar v. Heller, 247 So.2d 434 (Fla.

1971 ).

28. In Heller, The Florida Bar petitioned the Supreme Court of Florida charging Leon

Heller with the unlicensed practice of law. Id. at 434. In that case, Mr. Heller

would search the public records of Florida for abandoned or unclaimed lands and

money, including funds leftover on lands sold for delinquent taxes, and then

contact who he determined to be the rightful owners of such lands and money,

and if necessary, contact the heirs of such owners if the owner was deceased. Id.

at 435. Mr. Heller would then approach them with a proposal to recover the funds

upon agreement to share the proceeds of the recovery. Id. Mr. Heller would also

secure admission of foreign probate records, and prepare documents to secure

court orders. Id.

29. The Supreme Court agreed with the report of the referee that Mr. Heller was

engaged in the unlicensed practice of law, and enjoined him from "offering,

proposing or soliciting any other person, firm or corporation, having, or appearing

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to have any claim, or interest, in or to lands, properties or monies in the State of

Florida, or engaging in any in any transaction with any such person, firm or

corporation, by which he is to recover such lands, properties or monies, or any

part thereof, for another, for compensation, either in money or thing ... " and from

preparing documents to administer estates without the aid of a licensed attorney.

Id. at436.

30.Although the Heller Court clearly took issue with Mr. Heller's activities in the

probate realm, which are not applicable to this case, Mr. Heller was enjoined

from merely offering or soliciting to any person appearing to have an interest in

unclaimed monies in the State of Florida. Clearly, the Supreme Court believed

that activity to be the unlicensed practice of law if it enjoined Mr. Heller from

doing so in the future.

31. Such activity is identical to that committed by Jupiter and Mr. Paine in this case.

Mr. Paine searched the public records, made a determination that Mr. Wall was

entitled to funds held by the Clerk, and solicited Mr. Wall to obtain those funds on

his behalf for a portion of the recovery (40%).

32. The "Agreement" signed by James Wall is an illegal arrangement to provide legal

services to Mr. Wall by Jupiter, a non-lawyer/non-law-firm.

33. Under the "Agreemenr, Mr. Wall purports to transfer his interest in the surplus

funds to Jupiter, so that Jupiter can "file all necessary documents in order to

recover any and all monies available as a result of the tax deed sale."

34. The "Agreement" also states that Jupiter shall "make every effort to obtain any

available funds through the Clerk of Court".

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15

35. The essence of the "Agreemenf' is clear: Jupiter will file the necessary court

documents to obtain payment from the Clerk of Court on a contingency basis, for

a 40% fee (which today would amount to a fee near $94,000.)

36. However, because Jupiter Is not a law firm, and Jeffrey Paine is not an attorney,

the only way Jupiter could file documents with the Court on Mr. Wall's behalf was

to come before this Court as a straw-man assignee.

37.Jupiter did not disclose the actual "Agreement" to the Court in this proceeding or

in the Tax Deed action, so that it would not be apparent on the face of its claim

that it was illegally representing another party before a tribunal.

38.0n or about July 23, 2014, Mr. Paine prepared a letter, sent it to Mr. Wall, and

asked Mr. Wall to sign the letter and send it to Edwin Mulock, Esq., counsel for

the Clerk of Court in this action. The letter is attached hereto as Exhibit 'D'.

39. Mr. Wall did not sign the letter.

40. The letter includes a statement consenting to a default against Mr. Wall in this

action. Mr. Paine undoubtedly acted as an attorney when he prepared that letter

and instructed Mr. Wall to sign it. In reality, the letter was a legal document-a

consent to default judgment-intended to be used in this proceeding.

41. Such preparation of legal documents by a non-lawyer has been held to be the

unlicensed practice of law. The Florida Bar v. Eubanks, 752 So.2d 540, 544 (Fla.

1999).

42. The Supreme Court of Florida has "repeatedly held that the preparation of legal

documents by a nonlawyer for another person to a greater extent than typing or

Page 6of12

16

writing information provided by the customer on a form constitutes the unlicensed

practice of law." The Florida Barv. Miravalle, 761So.2d1049, 1051(Fla.2000).

43. Mr. Paine also holds himself out to be an attorney on his website, despite not

being licensed to practice law in Florida. See Composite Exhibit 'E', attached

(Google search showing title of jupiterassetrecovery.com to be "Jupiter Asset

Recovery I Jeffrey Paine Attorney"; Source code of jupiterassetrecovery.com

containing the page title "Jupiter Asset Recovery IJeffrey Paine Attorney".)

44.An attorney who sought a $94,000 fee for the simple act of filing a claim with the

Clerk would certainly face punishment by the Florida Bar. See R. Regulating Fla.

Bar 4-1.5 (prohibiting attorneys from charging clearly excessive fees or costs);

Also see The Florida Bar v. Carlon, 820 So.2d 891 (Fla. 2002) ($3,340.10 fee for

initial consultation and the mailing of several solicitation letters in effort to recover

asset held to be clearly excessive; suspension imposed.)

45. Surely, a nonlawyer, illegally providing legal services, cannot benefit from his

status as a nonlawyer to charge clearly excessive fees for those illegally provided

services.

46. The single most important concern in the Supreme Court's regulation of the

practice of law is the protection of the public from incompetent, unethical, or

irresponsible representation. The Florida Bar v. Moses, 380 So. 2d 412, 417 (Fla.

1980).

47.Mr. Wall deserves protection from the unethical, clearly excessive fee sought by

Jupiter and Mr. Paine.

Page 7of12

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17

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Fraud on the Court


set forth herein.

49. On or about January 22, 2014, Jupiter filed a Claim for Payment in 2013 TD 313

and attached thereto the previously mentioned Assignment {Exhibit 'B'), but

without disclosing the existence of previously mentioned "Agreement" {Exhibit

'A').

50. On or about July 15, 2014, Jupiter filed an Answer and Cross Claim in this action,

again attaching the Assignment but without disclosing the existence of the

"Agreement".

51. Paragraph 3 of the Assignment states in part, "This Agreement is complete, in

and of itself, representing the entire agreement between all Parties hereto ... "

52. That statement is plainly false. As previously stated, the Assignment was not

complete in and of itself; instead, the contemporaneously executed side

"Agreement" existed in addition to the Assignment.

53.Jupiter committed fraud on the Court when it filed the "Absolute Assignment of

Interest in Tax Deed Surplus Proceeds" without disclosing the existence of the

side "Agreement", without disclosing that the statement quoted in paragraph 51,

above, was false, and without disclosing that the Assignment was not "Absolute"

in any way, but instead was only a part of an arrangement for Jupiter to provide

(extremely expensive and unlicensed) legal services to Mr. Wall.

54. The side "Agreement" (Exhibit 'A') was not disclosed to the Court in either the

Tax Deed Action or in Jupiter's Answer to this interpleader action.

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18

55. The side "Agreement" (Exhibit 'A') was not disclosed in order to hide the fact that

Jupiter and Mr. Paine were acting as an attorney for Mr. Wall on a contingent fee

basis-and that truth was carefully and purposefully hidden from the Court by

Jupiter and Mr. Paine.

56. The Court has the inherent authority to dismiss claims as a sanction to parties

who commit fraud on the Court. Morgan v. Campbell, 816 So. 2d 251, 253 (Fla.

2d DCA 2002).

Unjust Enrichment


set forth herein.

58. If Jupiter is determined to be entitled to any fee at all, Jupiter is not entitled to its

fee to the extent that it was increased by Mr. Wall's payment of the IRS lien and

reduction of the Code Enforcement fine subsequent to the Tax Deed Sale but

prior to distribution of the surplus funds.

59.Jupiter did nothing to earn such increased fee and would be obtaining a benefit

only through the happenstance of Mr. Wall's payment of the IRS lien and the

reduction in the Code Enforcement fine which was granted at the request of

Ryan Snyder, Esq., counsel for Pallardy, LLC, the purchaser at the tax deed

sale.

60. Payment of such increased fee to Jupiter would amount to unjust enrichment.

Unconscionability


set forth herein.

Page 9of12

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19

62.Mr. Wall signed the Assignment and "Agreement" within a short time of speaking

to Mr. Paine for the first time, and without the benefit of legal counsel. Mr. Wall

was never advised by Jupiter or Mr. Paine that he should speak to an attorney

before signing the Assignment and "Agreement".

63.Although perhaps not explicitly applicable to the assignment of tax deed

surpluses, Fla. Stat. §45.033(3)(a)(2), regarding assignment of mortgage

foreclosure surpluses, requires the assignor to be warned that he does not need

an attorney or other representative to receive surplus funds.

64. Considering the legislature's decision to require that such a warning be afforded

to assignors of foreclosure surpluses, and the lack of any material difference

between one entitled to a surplus of a tax deed sale and one entitled to a surplus

of a foreclosure sale, such a lack of warning is sufficient to establish procedural

unconscionability.

65. Further, Mr. Wall is 74 years old, has a poor memory, and as such is more

susceptible than most to being taken advantage of.

66. The substantive unconscionability of the agreement is obvious: a 40% fee to file

a claim on a $235,000 surplus is clearly excessive and unconscionable.

67. The "Agreement" and Assignment are both procedurally and substantively

unconscionable and should be declared void.

Exploitation of an Elderly Person


set forth herein.

Page 10of12

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69. Prior to signing the Assignment and "Agreement", Jupiter and Mr. Paine failed to

inform Mr. Wall, an elderly person, that Jupiter's services were exorbitantly

expensive, and that Jupiter's fee would increase as a result of Mr. Wall's

independent payment of lien holders and as a result of Pallardy, LLC's efforts to

reduce the Code Enforcement fine and lien.

70. Jupiter's taking of the fee it seeks (approximately $94,000) would amount to the

exploitation of an elderly person, as the services provided are not reasonably

equivalent in value to the fee sought.

71. Such exploitation is prohibited by Fla. Stat. §825.103.

WHEREFORE, Defendant James M. Wall requests this Court to declare the

Assignment and "Agreement" illegal, null and void, and against public policy, to set the

same aside, to deny Jupiter any share of the funds held by the Clerk, to award Mr. Wall

the full surplus after payment of any superior lienholder, and to grant any other relief

deemed just and proper.

REQUEST FOR DIRECT PAYMENT TO MR. WALL

In the event that Jupiter is determined to be entitled to take any share of the

surplus funds, James Wall requests that he be paid his own portion directly.

DATED this 21st day of August, 2014.

Page 11of12

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Isl Christopher M. Hittel Christopher M. Hittel, Esquire Florida Bar No. 0696048 HITTEL LAW, P.A. 333 Sixth Avenue, West Bradenton, Florida 34205 (941) 746-7777 Office (941) 746-1133 Fax Designated E-mail Address for Service of Court Documents: [email protected]

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via e-mail to the parties listed below this 21st day of August, 2014:

Edwin T. Mulock, Esq., Counsel for RB "Chips" Shore, Manatee County Clerk of Court Law Office of Edwin T. Mulock [email protected]

Ryan L. Snyder, Esq., Counsel for Pallardy, LLC Snyder Law Group, P.A. [email protected]

James R. Cooney, Esq., Assistant County Attorney Manatee County [email protected]; [email protected]; [email protected]

Alfred Zucaro, Jr., Esq., Counsel for Jupiter Asset Recovery, LLC Alfred Zucaro Jr. LLC [email protected]

Richard Goldstone, Esq., Co-Counsel for Jupiter Asset Recovery, LLC Richard Goldstone, P.A. [email protected]

/s/ Christooher M. Hittel Christopher M. Hittel, Esquire

Page 12of12

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mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

,, i:= ,,

('").... -i::If.Y'I:x::n u; ;.:: = J>:;s;; ::s: rn:z:.o ?Cl-:i;:.:-rt ~ .CP-n ~~ I') (.nc:z>nrri. a:> :x:~ p~ ..,, ~·~ ~p :JC rrt;c).oS ct>-;o....i 0).. ·::Q.-n c;>QQ'J." c::: en ~

IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT, IN AND FOR MANATEE COUNTY, FLORIDA

R.B. "CHIPS SHORE CLERK OF COURT OF MANATEE COUNTY

Plaintiff, vs.

JAMES M. WALL; MANATEE COUNTY FLORIDA DEP;\RTMENTOFREVENUE; JUPITER ASSET RECOVERY; PALLARDY, LLC, et al,

Defendants.

Case N-0. 2014 CA 003155

ORDER GRANTING MOTION FORREHEARING AND FINDING THAT COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION OVER THE ALLEGATION TO

DETERMINE THE PNLICENSED PRACTICE OF LAW

THIS CAUSE having come on to be heard on February 24, 2015 by the Court upon

defendant, James M. Wall's ("Mr. Wall") niotion filed September 12, 2014 for a rehearing.to ' .

determine the circttit court's jUrisdiction over the allegations ofu:nlicensed practice oflaW and

defendant; Jupiter Asset Recovery's ("Jupitef') memorandum oflaw filed October 27, 2014.in

response to Mr. w~1•s motion to determine circuit court's jurisdiction.1 Christopher ~~t H;i:ttel

appeared with Defendant Mr. Wall. Dennis K. Bayer aJ'>peared by telephone on behalf~f

Defendant Jupiter. Edwin Mulock appeared on behalfofthe Plaintiff. The Court, after review

of the transc~pt from.the hearing which occurred on October 20, 2014 and motion, memorandum

of law and case law, hearing argument from counsel, a review of the motions and being

otherwise fully advised as to the premises, finds as follows:

1 Jupiter also filed a motion to strike Mr. Wall's motion for the circuit court to determine jurisdiction for the claim of unlicensed practice of law. ·

23

http:rehearing.to

1. On October 20, 2014, Judge Robert Farrance accepted jurisdiction of the

allegations ofMr. Wall against Jupiter for the unlicensed practice oflaw.

2. The ruling by Judge Farrance·at the hearing on October 20', 2014 was never

memorialized in an order.

3. The Florida Supreme Court has exclusive jurisdiction to determine the issue of the

unlicensed practice of law. Goldberg v Merrill Lvnch Credit Corp.35 So. 3d 905 (2010)

4. Unless Mr. Wall withdraws his allegations that Jupiter's conduct was the

unlicensed practice of law or Jupiter consents that it did practice law without a license, the Court

will not hear the allegations because it does not have subject matter jurisdiction. Therefore it is

ORDERED AND ADJUDGED that Mr. Wall's motion for rehearing on motion to

determine circuit court's jurisdiction over allegationS ofthe unlicensed practice of law is

GRANTED and this action is stayed pending a determination by the Florida Supreme Court as to

whether Jupiter's conduct was the unlicensed practice oflaw.

DONE AND ORDERED in Chambers in Bradenton, Manatee County, Florida, this 20th

day of March, 2015.

Copies to: Christopher Mat Hittel, Esquire Dennis K. Bayer, Esquire

yan Edwin T. Mulock, Esquire James R. Cooney, Esquire

Snyder, Esquire \R

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Rita M. Mott, CVR (407) 2951186 [email protected] 1901 Hinckley Road, Orlando, FL 328185367

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2016-2017

STANDING COMMITTEE ON UPL

FAO: #2017-1

IN RE:

Rule 10-9.1 Public Hearing: Shore v. Wall, et al.

Transcript of Proceedings held on Thursday,

January 26, 2017, commencing at 9:10 a.m., at the

Gaylord Palms Resort & Convention Center, Sanibel Room,

6000 West Osceola Parkway, Kissimmee, Florida and reported

by Rita G. Meyer, RDR, CRR, CBC, CCP, Realtime Reporter and

Notary Public, State of Florida at Large.

APPEARANCES:

JEFFREY T. PICKER, ESQUIRE WILLIAM A. SPILIAS, ESQUIRE ALQEISA VASQUEZ, ESQUIRE The Florida Bar - UPL Department 651 East Jefferson Street Tallahassee, FL 32399

On behalf of the Florida Bar

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APPEARANCES, CON'T: RYAN J. HITTEL, ESQUIRE CHRISTOPHER M. HITTEL, ESQUIRE Hittel Law, P.A. 333 6th Avenue W., Suite 333 Bradenton, FL 34205-8820 941.746.7777 [email protected] [email protected] On behalf of Petitioner

STARLETT M. MASSEY, ESQUIRE McCumber, Daniels, Buntz, Hartig & Puig 4401 W. Kennedy Boulevard, Suite 200 Tampa, FL 33609-2048 813.287.2822 [email protected] and JONATHAN D. KAPLAN, ESQUIRE 3929 Versailles Drive Tampa, FL 33634-7492 813.843.1248 [email protected] On behalf of Global Discoveries COMMITTEE MEMBERS IN ATTENDANCE: Jeffrey M. Kolokoff, Chairperson Monohar Athavale, Vice-Chairperson Dwayne L. Dickerson Amy D. Envall David Lanaux Rupasri S. LLoyd Susanne McCabe Rosanna M. Schachtele Kellie D. Scott Joseph C. Simmons Andre T. Young

Also Present: James Wall & Jeffrey Paine

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mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

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I N D E X

PAGE Statement by Ryan Hittel, Esquire ..............10 Statement by Mr. Kaplan, Esquire ...............36 Statement by Ms. Massey, Esquire ...............41 Statement by Chris Hittel, Esquire .............44 Statement by Mr. Paine .........................47 Certificate of Reporter ........................51

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MR. KOLOKOFF: Good morning again everyone.

I'm Jeffrey Kolokoff, the Chair of the Standing

Committee on the Unlicensed Practice of Law. We are

here for a public hearing.

During this time, this committee is considering

a request for an advisory opinion. Any information

which we learn at this hearing through testimony,

will not be deemed an admission or evidence on the

unlicensed practice of law. We will not initiate an

investigation of the activities or any company or

individual testifying today solely based upon their

testimony.

However, any ongoing investigations will

continue and if we receive a new unlicensed practice

of law complaint on any person present today, we

will open a file per the Bar's normal procedures.

If you are involved in an ongoing UPL

investigation or receive a UPL complaint and open a

file, your testimony will not be held against you.

Your testimony will not be deemed an admission or

evidence of the unlicensed practice of law and will

not be sent to the circuit committee. The reason

for this ruling by me is to encourage full and

candid testimony so the committee can reach a

determination in the matter at hand.

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This hearing is being held pursuant to Rule

10.9 of the rules regulating the Florida Bar.

Pursuant to the rule, notice of this hearing is

published in the Orlando Sentinel and the Florida

Bar News and also posted on the Florida Bar website.

This hearing came about as a result of our

receipt of a written complaint and request for a

formal advisory opinion from one or more of the

Defendants in the interpleader action who claims one

the other Defendants engaged in the unlicensed

practice of law.

That case, Shore versus Wall, et al, is

pending. It's actually stayed in the Circuit Court

of Manatee County. The judge stayed the case

pending a determination by the Supreme Court of

Florida as to whether the Defendant's conduct

constitutes the unlicensed practice of law.

The Supreme Court of Florida in the case of

Goldberg versus Merrill Lynch Credit Corporation

held the case of first impression. Cases where the

Florida Supreme Court has not yet ruled on the

actions at issue, the case may be stayed for

determination from the court pursuant to the

advisory opinion procedures of Rule 10-9.1 or the

complaint and injunctive relief procedures of Rule

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10.5, 10-6, 10-7 of the rules regulating the Florida

Bar. And this hearing is the initial step in the

advisory opinion process.

The questions today presented is whether a

non-lawyer company is engaged in the unlicensed

practice of law when it holds itself out as having

special knowledge on how to recover excess proceeds

from a tax sale -- tax deed sale held by the Clerk

of Court under Chapter 197 of the Florida Statutes.

Identifies and contacts owners of excess deed

sale proceeds for the purpose of offering to recover

the excess proceeds on their behalf from the Clerk

of Court.

Offers the owner of excess proceeds a

contingency arrangement using a purported assignment

modified by an agreement to share the excess

proceeds upon recovery with the owner retaining a 60

percent interest in the excess proceeds.

Requests from the Clerk of Courts to surplus

funds based upon the purported assignment and files

pleadings in the interpleader actions to recover the

surplus funds.

We have some witnesses here and if you haven't

signed in as a witness, please do so to the pad on

y'alls left.

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Mr. Hittel, attorney for the Petitioner, will

be the first to testify. We'll then take testimony

from anyone else who wishes to be heard. Before we

open for questions by committee members or for

committee members to ask questions, please identify

yourself for the court reporter.

Before we begin, we're going to go ahead and

introduce everyone. But I have a few more things

that I have to say before we actually begin that.

If any witnesses have any written materials

that you wish to provide to the committee, provide

them to Mr. Picker, who is sitting to my right. I

know that we have received some materials and the

committee has materials already.

The testimony will be limited to fifteen

minutes and we will conclude after all testimony is

taken. At that time, we will decide whether to

continue this hearing, but I expect that we will,

after the testimony is concluded, move into

executive session because the committee is going to

need the advice of counsel and that is -- that

advice is confidential and protected by

attorney/client privilege.

As a preliminary matter, I'd ask any members of

the committee to address any conflicts of interest.

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Rule 10-9.1 of the rules regulating the Florida Bar

states: Committee members shall not participate in

any matter in which they have either a material

pecuniary interest that would be affected by

proposed advisory opinion or committee

recommendation or any other conflict of interest

that should prevent them from participating.

However, no action of the committee will be invalid

where a full disclosure has been made and the

committee has decided that that -- not decided that

member's participation is improper.

At this time, I'd ask any members of the

committee communicate if they have any conflict they

have to disclose on the record or otherwise any

other conflict.

(No Response)

MR. KOLOKOFF: Hearing no response.

With that, I already identified myself. My

name is Jeffrey Kolokoff. I'm the chair of the

committee. We'll move on to Mr. Picker. We'll go

this way (indicating).

MR. PICKER: I'm Jeff Picker. I'm assistant

UPL counsel in Tallahassee.

MR. RIVERS: I'm Jay Rivers, Tallahassee.

MR. DICKERSON: Morning. Dwayne Dickerson.

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I'm a land use and building attorney in Boca Raton.

Dunay, Miskel & Backman.

MR. SIMMONS: Good morning. My name is Joseph

Simmons. I'm a public member from Tampa.

MR. ATHAVALE: Good morning. Manny Athavale,

public member from Lake Worth.

MS. ENVALL: Morning. Amy Envall, attorney from

Orlando.

MS. McCABE: Good morning. I'm Susanne McCabe

and I'm an attorney member from Volusia County.

MS. SCHACHTELE: Rosanna Schachtele, public

member, Okeechobee.

MS. MURPHY: Morning. Nancy Murphy, public

member, Tallahassee.

MS. SCOTT: I'm Kellie Scott. I am an attorney

from Tallahassee.

MR. LANAUX: David Lanaux, public member from

Ft. Myers, Florida.

MS. LLOYD: Rupasri Lloyd. I'm an attorney

from Gainesville.

MS. VAZQUEZ: I'm Allie Vasquez. I'm branch

UPL counsel in Fort Lauderdale.

MR. SPILIAS: And Will Spilias, UPL counsel,

Tallahassee.

MR. KOLOKOFF: Mr. Hittel, attorney for the

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Petitioner, the floor is yours, sir.

Sir, we don't have the benefit of a microphone.

If you'd speak up so that everyone can hear you,

that would be great.

MR. RYAN HITTEL: Sure thing.

Thank you very much everyone and good morning.

Thank you to the committee for being here today.

My name is Ryan Hittel. That's H-I-T-T-E-L.

I'm here with co-counsel Christopher Hittel and

we're here on behalf of Mr. James Wall, who's also

here today.

It is Mr. Wall's position that the question

presented should be answered in the affirmative.

Although people may generally represent themselves

in court, they should not be allowed to use an

assignment to make it look like they are

representing themselves in court when in reality,

they are acting in a representative capacity. If

that were to be allowed, anyone could practice law

in Florida as a plaintiff without a license.

There's a difference between a bona fide

assignment for value and the type of assignment

arrangement described in the question presented. A

bona fide assignment for value is a common

occurrence and parties often bring claims on their

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own behalf pursuant to such an assignment, such as a

debt collector who purchases a bad debt from a bank

and then files